Virginia Bar Exam Blog
Sunday, June 25, 2006
  More Contracts...
UCC: Article 2
· Subject matter sensitive:
o Sale of goods
§ Art 2 has NO application is the good is sale in land or interest in land, personal services, intangible
o Parties must both be merchants:
§ Any person who makes a livelihood dealing with the subject matter or makes affirmative representations that is how he make a livelihood even if not true

1. Offer and Acceptance:
Did the parties form an agreement?
1. Can you find an offer?
2. If you can find an offer, at the time acceptance was attempted, was the offer still outstanding?
3. If you found an offer and the offer was still outstanding, was their a defective acceptance?
· Courts want to find a contract – positive bias in contract formation → objective theory of contract formation
· What a reasonable person would believe whether there was a contract

Offer: 1. Can you find an offer?
3 elements of an offer:
1. Intent - must be an intent to form a present contract – manifestation to presently enter into a contract
· Obligations may not mature for 6 years, but the intent is to form a contract now for performance in 6 years
· State of mind:
o An objective test – would a reasonable person understand that there was an offer?
· Preliminary negotiations:
o At the point 1 of the parties thinks he has a contract, the other party thinks there is only preliminary negotiations.
2. Content - the offeror must set forth the essential terms of her proposal
· The offeror must set forth the essential terms, identifying the parties, the subject matter, time for performance and price.
· Under the CL a communication that lacked ANY of the essential terms was too indefinite as a matter of law to constitute an offer.
o But trend is to conclude a contract has been formed.
o CL reform – if there is total silence in the contract on 1 of the essential terms of the bargain a ct will attempt will treat their total silence as a mutual manifestation to trade on a reasonable term
§ What is a reasonable term?
· If the parties have done business before – look to prior history
· Never done business before – look to common trade or business
o If ambiguous term – then no ct can apply a reasonable term
o UCC – if both of the traders are merchants and the subject matter is goods, then the code provides great flexibility in settling the essential terms:
§ 1. Merchants are free to adopt term setting machinery which will fix the content the essential terms in the future
§ 2. Agreeing to agree on the future on price – binding
§ 3. Ct will imply a reasonable term
3. Communication – Communication of the offer and its terms by the offeror to the offeree
· There must be communication of the offer –
o Rewards



2. If you can find an offer, at the time acceptance was attempted, was the offer still outstanding?
· An offeror is in complete control of the offer
o At a specific time, on occasion of a specific event, no matter how unreasonable
o If life of offer is silent –
§ A lapse of time – reasonable time only
· Produce – very limited time because perishable
· Tray of diamonds – open for a very long time because not perishable and price not very volatile
§ Death or destruction of subject matter terminates the offer by operation of law –
· Fire destroys the house
· Death or insanity or legal incapacity of the offeror or offeree
· Supervening illegality of the proposed subject matter – government intervenes the transaction illegal
· Termination by rejection – rejection as a matter of law terminates an offer
· Revocation by the offeror – even if the offeror states a time when the offer will expire, an offer is inherently irrevocable at any time prior to acceptance
o 3 exceptions:
§ 1. Purchase an option over the offer – an option is always a separate contract with its own offer, acceptance and consideration, though usual of nominal economic value. It is irrevocable under the terms of the option
§ 2. Cut off the power of revocation under the theory of estopple – if offeree changes his position in foreseeable reliance of the offer, offeror may be estopped from revoking the offer due to foreseeable detrimental reliance of the offer
§ 3. A merchant’s firm offer (UCC) – only the offeror needs to be a merchant. If goods are the subject matter than an offer that is in signed writing by a merchant trader is irrevocable according to its terms.
· Up to 90 days even if the writing states a longer time

3. If you found an offer and the offer was still outstanding, was their a defective acceptance?
· Was there a defective acceptance?
· An acceptance must amount to – to a present unconditional unequivocal assent to each and every term of the offer
· If the response has this quality then at what time is the contract is form?
· Mailbox Rule: the contract is formed when the acceptance is dispatched if it is communicated in any commercially reasonable manner (any mode that is at least as fast and reliable as the one utilized by the offeror). Contract is formed the moment the acceptance is placed in the channel of communication even if the offeror is not aware that formation has taken place.
o All risk of delay or misplacement if borne by the offeror
· Rejection Counter Offer Rule - If the acceptance is any way different than the offer, not only is no contract formed, but the offer is revoked as well.
o Acceptance must be a mirror image of the offer
· Incorporation by Reference: revives the original offer
· A mere request made by the offeree to the offeror that the offeror consider other different terms which makes quite clear that the offeree is not rejecting offer does not create a contract nor reject the offer.
· Merely making explicit terms that were in the contract or making reference to an annex of the offer does not trigger the rejection counter offer rule.
o Implied merchantability
· UCC – if goods are the subject matter of the attempted exchange and both parties are merchants, then additional terms by the offeree in the acceptance, there will be a contract unless:
o 1. There must be an acceptance by the offeree
o 2. If an offeror may not be bound by other terms of the offer by making a take it or leave it offer
§ Even if the offeree accepts with “additional” terms, the contract will be formed with only the take it or leave it terms of the original offer
o 3. If the offeror does not make an ironclad offer and the offeree makes changes in its acceptance, then a contract will be formed. However, what are the terms?
§ Whether or not the new terms are consistent or inconsistent with the original terms
· If consistent – a contract is formed and the additional terms form the new contract unless the offeror promptly rejects the additional terms in writing.
· If consistent – the new terms are not included unless the offeror expressly accepts them
o If the terms materially shift the economic advantage of the original offer
o Shift the incidents of law – shift the risk
o Per se rule – if any term of the acceptance would impair a remedy which would otherwise be available upon a breach of the contract
§ Arbitration clause


Unilateral Offer:
· A promise for an act
· Acceptance can only be made by total completion of an act
· An offer can still be revoked until completion of an act, but there are 2 protections available to the offeree:
o 1. Rule of Construction – whenever possible, a ct will construe an offer as inviting formation in the bilateral mode (for UCC)
§ Seller’s prompt shipment of the goods
§ OR the promise to promptly ship the goods
o 2. Common law rule – once the offeree the begins the substantial performance of the requested act, he does not form a contract, but he does cut off the power of the offeror to revoke so as to give him the reasonable opportunity to complete the act requested
§ Must have substantial performance by the offeree
§ Offeree is under no obligation to complete the act once it is started

Mistake and Ambiguity: Can preclude the formation of an agreement
· Ambiguity: when language betrays: either precludes the formation of an agreement
o 1. Latent/Hidden Ambiguity:
§ If at the formation stage of the bargain neither trader recognizes that a term is ambiguous and it affects an essential terms of the contract and each party has subjectively attached a different definition to that term their bargain is flawed by latent ambiguity and there can be no contract because the ct cannot give favor to one reasonable definition over another reasonable definition of a term.
o 2. Patent/Obvious Ambiguity:
§ If both parties are at fault for not clarifying an obvious ambiguous term there can be no contract.
§ When one of the parties is not at fault, the other party is guilty of fault because the ambiguity was obvious to that party. Protect the interest of the innocent party and give the definition of the term of the non-faulting party and a contract is formed.
· Mistake: here ambiguity is not the problem, but that the terms do not convey the actual intention of 1 or more of the parties.
o 1. Mistake by the parties:
§ When both parties share a mistake (mutual mistake):
· Each party has the equity of recession and can refuse to perform his party of the promise depending on the gravity of the mistake:
o If the mistake goes to the essence of the contract then can rescind the contract
o If the mistake does NOT go to the essence of the contract, then the parties cannot rescind the contract
· Where are the parties due to the mistake?
o Executory (neither parties have performed)
o If both parties have already performed, there is little remedy
§ When 1 party is mistaken (unilateral mistake):
· When only party is mistaken –
o Mechanical miscalculation – may provide grounds to relieve the mistaken party
§ Will depend on the state of mind of the non-mistaken party and whether she has formed a commercially reasonable expectation
· If the non-mistaken party had no reasonable grounds to suspect the mistake and did not have notice of the mistake, then the contract is formed and the mistaken party has no defense
· If the non-mistaken party has notice that there was a mistake, he cannot leap upon the mistake of the other party. The mistaken party may be able to rescind the contract.
o Error in business judgment – no defense to either party
§ The knowing party does not need to inform the unknowing party
§ The knowing party however may not deceive the unknowing party
o 2. Mistake by a 3rd party intermediary:
§ 3rd party made a mistake in transmission – same rules as mechanical miscalculation apply

Parol Evidence Rule:
· The parties formed an agreement and reduced the agreement into writing. One of the parties wants to bring in evidence not found in the written agreement.
· Is there an integrated writing?
o Parol evidence only protects an integrated writing
o An integrated writing shows the full and final intent of the parties. If the parties did not form the agreement with that intent, then the parol evidence rule has no application.
o The ct will determine whether the agreement looks as if it is the full and final intent of the parties
o What is the evidence the parol evidence rule is trying to bring in?
§ Parol evidence is any evidence of any promise, representation or understanding between the parties that formed the integration that was arrived prior to or contemporaneous with the formation of the integrated writing.
§ Evidence of a subsequent modification is not parol evidence.
§ What is the impact on the agreement of the parol evidence?
· Evidence may not be brought in which contradicts a term in the written agreement
· If it defines an ambiguity or defines a term, then the evidence may be admitted
· Notwithstanding that parol evidence contracts, varies or adds to the terms of the written agreement, there are 3 exceptions when parol evidence may be admitted:
o 1. Proof of Fraud
o 2. Partial Integration
§ CA – if the party seeking to introduce the parol evidence can show any reason why the term was left out in the writing, it goes to the jury
§ More strict jurisdictions – look to the writing. Does it look like an integrated contract?
o 3. Collateral Agreement
§ “2nd Agreement” –
· The judge must determine that the proposed 2nd agreement is of far lesser importance than the integrated writing
· No term of the alleged collateral agreement may contract the terms of the integrated writing
o If the integrated writing states that it is the final contract or that all the terms are present in the contract, then the 2nd agreement cannot be introduced
· There must be some nexus between the 2 agreements and a reasonable reason that there were 2 separate agreements
 
Friday, June 23, 2006
  6 Basic Contracts Issues
I know this sounds crazy, but contracts is my favorite subject, so I guess I will start with sharing parts of my contracts outlines... since I cant figure out how to link stuff (technologically retarded), I will end parts of my outlines as posts. Hope this is helpful!!

6 Basic Contracts Issues:
1. Did the parties form an agreement?
• The law of offer and acceptance – there can be no true contract unless the words of the parties manifest a mutual objective assent to be bound by the terms of an agreement.
• Ambiguity language or mistake of the parties.

2. If the parties formed an agreement, is their agreement a contract?
• Is their bargain a contract?
• The presence of valuable consideration – bargained for legal detriment on both sides
o Promissory estopple
• Defenses to enforcement – voidable v. void

3. Do the terms of that contract or the subsequent actions of either of the parties confer any rights or impose any duties upon non-traders?
• Do the terms of that contract or the subsequent conduct confer any rights upon any non-parties?
• 3rd party beneficiaries
• Assignees and delegates of duties – subsequent parties of the formation of the contract

4. Have the performance obligations created by the contract matured?
• Conditions – express (created by the terms in the bargain)
• Implied in fact – necessary physical inference from what the parties obviously assumed
• Conditions implied at law – constructive conditions – arise by operation of law
• Every condition modifies a promise – the condition does 1 of 3 things:
o Before – condition precedent
o Simultaneously – condition concurrent
o After – condition subsequent – always express, never implied – will extinguish what up until that time was an obligation of the contract

5. If the contract obligations have matured, has performance been excused?
• Have the obligations been preformed and performed on time?
• Have they been excused? Excusable non-performance:
o 1. Where the performance obligations have become objectively impossible
o 2. Where the performance obligations have become commercially impracticable
o 3. Frustration of Purpose – subsequent to formation of contract circumstances have so dramatically altered that the performance of other party have no value

6. If performance has not been excused, the contract has been breached. What are the remedies?
• If the performance obligations have not been excused and have not been formed, the contract has been breached.
o Present material breach
o Breach by anticipatory repudiation
o Breach by voluntary disablement
• Remedies, damages, restitution and reimbursement
• No adequate remedy at law – sue in equity
o Declaratory judgment
o Specific performance decrees
o Injunctive assistance
 
Wednesday, June 21, 2006
  Motivation... these posters make me laugh!
 
Monday, June 19, 2006
  The Study Group


Ok, so it's official... I am going to sign up for The Study Group. I have only received a few comments on which bar exam course is the best (or what people think is the best/the worst/the ugly)... Maybe no one reads this blog... Has anyone out there taken the VA bar exam or taken The Study Group?

I have taken Barbri, and I totally think that they suck, but maybe they are ok for VA? I was shock (I mean shocked!) when I passed a bar exam taking Barbri (i.e. We aren't going to do Con Law because it hasnt been on the essays in 20 years. Test takers begin. Open the bar exam booklet, and what's the 1st essay question? A FULL blown Con Law essay! I almost fell over...)

Having said that, unlike NY or Cali, VA doesnt seem to have many options except for The Study Group, Micromash and Barbri...

If ANYONE has ANY thoughts to this, I would REALLY appreciate it!!

 
Sunday, June 18, 2006
  Surfing Today

OK - maybe I am officially procrastinating or lazy today, but I have been surfing some other bar exam blogs... saw this one, and boy, do I get it! I felt like this too... but CHIN UP!!

Studying for the Texas Bar Exam Current mood: lethargic

Ok so I remember all those comments from those that have already had the joy of studying for the bar that this summer was really going to suck. But did I believe them? Well, I thought maybe they were just a little whiny and needed some sympathy.

HOWEVER - studying for the bar sucks. Things I have noticed in the first week of studying.

1. I need to stock up on my sweat pants/stretchy waist band baggy ass pants cuz all I do for 10+ hours a day is sit at my desk, get up for more Dr.Peppers, pee, and eat. This is NOT good.

2. I resolve to shower daily! I get up in the morning. Go to the bathroom. Down a Dr. Pepper and sit at my desk. 10 freakin@?!&^@#@* hours later its starts to get dark. Im still in the same stretchy pants and T-Shirt I went to bed in the night before. FUCK! I guess I will shower at night. BTW - I DID brush my teeth this morning at least!

3. Im NEVER going to get some ass this summer. I had a mission to meet some of those hot astronauts boys since Im like a mile from NASA now but Im thinking that may not work out. Hello Mr. Purple!!

4. I HAVE TO come up with a work out routine. Even if its going for a walk for 30 minutes. I will go insane if I keep this up for 6+ weeks. Holy shit. Any suggestions?

5. Im going to totally lose my ability to drink. Which may be a good think but DAMN when this is over I want to be able to have a few Southern Comfort on the Rocks before I start spewing or passing out.
So, Shower, Very well, work out, in new stretchy pants, and sip on a little sumpin sumpin to keep my tolerance up!

And let the fun begin!!
 
  MBE Tips


I saw this on another blog and thought that it might be helpful:

SUGGESTIONS FOR THE MBE
Many of the professional companies tell you to do fifty in a row. That would make sense if you knew the law, but starting out you probably don't, so that advice doesn't make sense. Micromash does a neat thing in that it tells you the answer instantly after you answer the question. The problem is that it keeps the clock running, so your time per question gets skewed. I conclude there are two good ways to approach the mbe practice: real time and study time

STUDY TIME
Study time means do one, two, or at most ten mbe's in a row and correct them. Look at the answer and UNDERSTAND why you got it wrong. There are a number of reasons for wrong answers. The best one is that you don't know the law, because you can learn the law by copying down the rule of law on a piece of paper each time you miss for that reason. Maybe even copy rules down on the ones you get right. Recitation is key. The second best reason to miss an MBE is because you didn't read carefully enough. Easy to fix; just read more carefully. You will note, for example that the torts mbe's don't always mention what the cause of action would be. They trip you up by throwing in negligence or strict liability because they know you will often answer by instinct. They will put an answer perfect for strict liability in there and it's about negligence, so you are wrong.

The worst reason of all is because the facts or too convoluted. Some MBE's are not answerable because there are too many parties and events. I counted in one PMBR question 7 parties, 5 events, and 11 dates. Great for math majors and chess players, bad for me. Cross them out and guess.

REAL TIME
Try to do at least fifty. I have found that I do mbe's very quickly, and the longer I spend on them the worse I do. Sorting out which ones you should spend more time on is something I'm working on. I second-guess myself and get it wrong, or I read more carefully and avoid the trap-door. There is a delicate balance that perhaps comes with experience. Some experts say you should avoid guessing on instinct; this is true, but if your instinct is combined with a rule that you are stating in your head, this is probably the best you can get. Argue with yourself. Think about which area of law they are testing and which fucked-up little wrinkle they think they got you on. I have heard that the real mbe is easier than the practice ones in commercial products, although California's requires a higher score than most. Therefore, when you come across an mbe that doesn't really explain why an answer is wrong (and I gott a hand it to the bar examiners, it's very tough, almost an art form to write an mbe that is demonstrably incorrect on three answers, which is why sometimes their answers are complete bullshit...an arbitrary line drawn in the sand...kind of like a lot of SCOTUS decisions)ignore it. Go for the low-hanging fruit. Do NOT go into law school over-achiever mode. While it's my instinct too, and I've scored some 80's because of it, this test is about passing. Period.

So, for example, this morning I went over to the coffee shop and finished the last fifty mbe's from a PMBR sample exam. My overall score was about 109, which if you add the 31 raw score points to make it equivalent to the actual mbe, is 140, a passing score. I was nonetheless a little pissed off. I thought the afternoon questions were harder and it seems PMBR makes the questions unecessarily difficult for the dual purpose of training their customers as well as scaring the shit out of them so they buy their stuff...I'm kind of ambivalent about that tactic. Rigorous training is good, but that whole "sink or swim" Navy SEAL trial-by-fire school of education isn't the best way to approach things. Some poster on "GIRL WALKS INTO A BAR EXAM" said it well. "Your supposed to help us, not fuck us up!"I finished my badly made cappacino, tossed the PMBR exam into the trash, and went home....

So, in short
1. do a hundred a day, same subject unless you get so bored you want to stab yourself in the eye with a pencil...
2. Go slowly and understand why you got it wrong. If their answer makes sense.
3. If you are still reading the explanation ten minutes later, it isn't your fault. Move one.
4. Use different sources. Barpassers, Micromash, PMBR, Barbri all have mbe books you can get, and they are different. The one common thing is that they test the law.
5. Use the process of elimination.
6. scribble in the books...circle parties and important dates and facts. Don't get cheap. Just buy more books. You probably spent upwards of a hundred grand to get here...you don't want to spend fifty bucks for a book?
7. Get addicted to them. Think of it as a game. And in a way, it's the best game, because mbe's are as objective as things get in the bar exam. No petty tyrants to fuck you up for not doing things stylistically the way they like it.

Love the mbe.
 
  Help Wanted!!

Ok, I am trying to figure out how I can link my outlines to this blog.. Can't cut and paste them because they are too long.

If anyone knows, I am happy to share my outlines!

Thanks!
 
Friday, June 16, 2006
  Comments on Comments
Again, I am happy to share notes, outlines and any advice, but PLEASE send comments to the comments link attached to the envelope. Thanks again!
 
  How to Memorize

Someone asked me how I memorized for the CA bar exam... maybe this will help someone :)

Honestly studies so differently than anyone I know.



1. I listened to all the Fleming tapes and PMBR CDs. You can order the Crim Pro CD if you call them too. My worst subjects are crim pro and con law, so I really needed the extra CD.
I really learn from listening and not reading, but if you can memorize things from reading then go for it. I really just high lighted and wrote notes in the margins when going through Fleming's outlines while listening to the tapes. I found that I really retained a lot that way. Then I would write out everything Fleming would say during his essay critiques. That was my "solidifying" what I had learned in this lecture.

2. Then I would issue spot and write out a few essays (including the ones for essay critique). After writing my essay, I would compare it to the sample essays. Any points that I didnt really get or thought that I wasnt too concrete on, I would make a mini-outline on that part. For example, search without warrants has always been a huge problem for me. So I outlines that entire section.

3. Then I would search of essays on that topic and try to relate my mini-outlines to that particular essay. If I still didnt get it, I would outline the section again, but with more detail on subsections (i.e. Stop and Frisk).

4. That's all I really did for essays and memorizing...

5. I always did AT LEAST 50 MBE Qs a day. I found them to be a bit relaxing and a change of pace after listening to Fleming's annoying voice and writing all day... I pretty much HATE essays, so doing multiple choice questions was awesome for me. I always read the entire answer. I also made mini-charts for certain topics that I found confusing ( i.e. marital v. spousal exclusion --- 2 column chart --- who it covers, what it covers, when it expires). Then I would plaster these charts all over my study room... I know, crazy! Another good chart was homicde through mis-d manslaughter, what intent required, any defeneses, intoxication (put intoxication in a separate column because it comes up so often).

Seriously, that's all that I did. I think that more than what you know, it's how you put it down on paper that is more important.

Hope that helps...
 
Tuesday, June 13, 2006
  How to Keep Your Head On!

With all the subjects you have to do, the lectures you have to attend, the homework you have to do, sometimes you get into such a strick study mode that you forget to review. Always review a past subject at least every 3-4 days, that way you wont forget what you already learned.

I found that keeping track of how many hours, how many questions (MBE, essays, issue spotting, etc) for each subject on a spread sheet kept me in track. Even if you just issue spot one essay, you keep the subject fresh in your mind.

Hope this tip helps!

Example:
Subject: Date: 1/2...... 1/3 ........1/4 .......1/5.......... 1/6
Con Law.......20Q, 1E ..............................................1 I
Crim Law ...................30Q 2I............ .................10Q
 
Monday, June 12, 2006
  Input Needed!
So, what courses did everyone decide to take? Any advice on your bar course would be very helpful. Please post your opinions... Thanks!
 
Saturday, June 10, 2006
  Tip of the Week
HOW TO PREPARE FOR THE BAR EXAM:BARWRITE TIP OF THE WEEK

Using an outline is always key in studying law, and studying for the bar exam is no exception. If your bar review course provides a short outline for every subject on your bar exam--one or at most two pages long--that is the outline to learn. Start from a barebones outline and sparingly add other rules.

Make sure that you can state and explain every rule on your outline. Practice applying that basic law to fact patterns. Learn to recite the outline to yourself from memory. When you outline your practice essays, use the rules from your short outline.

Resist the temptation to use outlining to waste time. There are many activities that feel like hard work, and they are hard work, but that do not teach you enough law to be worth spending time on in your short bar-preparation period. Do not make new long outlines, do not copy out old outlines by hand or in the computer, and do not outline page upon page of class notes.Here is a sample barebones outline for Contracts. This is your starting point. Just write one or two rules for each term on this outline, and you are on your way.

I. Formation of contract
A. Mutual assent
B. Consideration
C. Substitutes for consideration: detrimental reliance; statutory substitutes.
D. Defenses to formationE. Third-party beneficiaries. Assignment and delegation.
II. Statute of frauds
III. Parol evidence rule
IV. Conditions
V. Remedies
VI. Other defenses
VII. Discharge of duties

Good Luck!
 
Friday, June 09, 2006
  Comments on Comments
Nothing much to update on... Thought that this was kinda funny. But really, I am SO happy to reply, but please leave your comments under the comments section with the letter (not the one below). I get an email reminder with the top comments and it is easier for me to reply.

Hope that your studying is going well. Share your pains and thoughts!

Keep up the HARD work!
 
Sunday, June 04, 2006
 

Saw this on another site and thought it was funny. But is it true or what!

I hope that this site is helpful to someone. If there is anything you would like me to add, please leave a comment and I will definitely try my best!
 
This is a blog for people serious about taking the Virginia bar exam... Emotional and study support system.

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Location: New York, New York, United States
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